R v Jamieson [2019] NZDC 15864 (15 August 2019)

Last Updated: 1 November 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html

IN THE DISTRICT COURT AT WHANGAREI I TE KŌTI-Ā-ROHE KI WHANGĀREI-TERENGA-PARĀOA

CRI-2018-088-003319

[2019] NZDC 15864

THE QUEEN

v

PETER BRIAN JAMIESON

Hearing:	6 to 9 August 2019
Appearances:	R Annandale for the Crown J W Watson for the Defendant
Reasons:	15 August 2019

DECISION OF JUDGE D J McDONALD

[REASONS AS TO RULING ON COMMUNICATION ASSISTANT]

[1] Mr Jamieson faced three charges of doing an indecent act on a child under 12 and one charge of sexual violation by digital penetration. [The complainant] was born

R v PETER BRIAN JAMIESON [2019] NZDC 15864 [15 August 2019]

on [date deleted] 2006. At the time she gave her evidential interview she was 12. At the time of trial she had just turned 13.

[2] Prior to the trial the Crown sought an order that a communication assistant be appointed to assist [the complainant] giving evidence. It was opposed by the defence.

Who is entitled to a communication assistant?

[3] Section 80(3) states:

80. Communication Assistance

....

(3) A witness in a civil or criminal proceeding is entitled to communication assistance in accordance with this section and any regulations made under this Act to enable that witness to give evidence.

[4] No regulations have been made.

[5] Section 81(2) states:

81. Communication assistance need not be provided in certain circumstances

....

(2) Communication assistance need not be provided to a witness in a civil or a criminal proceeding if the Judge considers that the witness can sufficiently understand questions put orally and can adequately respond to them.

[6] In R v Moeke and Karauria1 Downs J observed with reference to s 80 and 81 and the definition of communication assistance and s 4(1):

• [8] It follows a witness in a criminal or civil proceeding is entitled to communication assistance when the witness has a communication disability, unless the Judge considers the witness can sufficiently understand oral questions and adequately respond without assistance.
  
• [9] Communication disability is undefined by the Act but was obviously shaped by the surrounding provision and ss 80 and 81, in turn implying the concept is concerned with testimonial difficulty in understanding or responding to oral questioning. I say difficulty
  

1 [2017] NZHC 1314 at [17] and [18]

rather than incapacity because s 81 provides communication assistance need not be provided if the witness can sufficiently understand oral questions and adequately respond, a test unlikely to be met if communication disability is synonymous with communication incapacity. Consequently, communication disability likely entails a spectrum ranging from difficulty to incapacity in relation to oral questioning.

[7] Bearing in mind the legislation and what was said in Moeke I then considered this case. I had a very helpful and comprehensive report from Ms Bonetti. I am familiar with Ms Bonetti’s expertise in this area. I find that she is an expert.

[8] In paragraph 5.1 of her report she said:

[The complainant] is a competent communicator and can give accounts of events in sequence and with detail. She has some delays in expressive vocabulary but good comprehension of language for her age. It would assist [the complainant] if questions were structured chronologically and/or sign posted clearly so she could separate out events in time. Given her age, she would benefit from the structure of questions to be single or two parts avoiding embedded sentences, and complex tags, vocabulary that is clear, unambiguous and within the range of talking to a ten year old child should be used.

[9] At 5.3 Ms Bonetti offers the opinion:

The recommendation is that there are specific accommodations regarding scheduling, breaks and questioning for this witness. When viewing the extent of these accommodations and the adult assistance that would be required the report writer does recommend that a CA be appointed.

[10] Mr Annandale submitted that given Ms Bonetti’s report in her view that a communication assistant should be appointed I should do so. He said [the complainant] was just 13. Although he did not go so far as to say that every child should have a communication assistant his submissions to me came very close to that. That is not the purpose in my view for which sections 80 and 81 were enacted.

[11] Mr Watson submitted that the appointment of communication assistance so that the jury could see the assistant was almost always unfair to the defendant. It invoked sympathy for the complainant. That Ms Bonetti was not adamant in her report that a communication assistant should be appointed.

Discussion

[12] I came to the view that [the complainant] did not require a communication assistant on the information before me. I had considered not only Ms Bonetti’s report but also [the complainant]’s evidential interview. On the face of that interview it did not appear to me that [the complainant] had any difficulty understanding what she was being asked. On the one or two occasions where she and the interviewer appear to be talking at cross purposes [the complainant] asked the interviewer to clarify what the question meant. I consider that [the complainant] could sufficiently understand questions put orally and could adequately respond to them. My concern was that I had not seen [the complainant] giving oral evidence. I ruled that I might review my decision once [the complainant] had started giving oral evidence and to that end I asked Ms Bonetti to be present during [the complainant]’s oral evidence. I was extremely grateful that Ms Bonetti made herself available for that.

[13] In the end [the complainant] did not require a communication assistant. She gave her evidence in a clear way. She had little difficulty understanding the questions being asked by Counsel and in particular by defence Counsel. When Counsel strayed and asked questions that I considered that she did not understand or might not follow, I asked Counsel to rephrase them. One example was to ensure that Counsel sign posted when they were moving from one topic to another topic.

D J McDonald District Court Judge